The Massachusetts Home After a Death

What “homestead” means in Massachusetts

Massachusetts has no homestead devise rule. Its law speaks of the estate of homestead — an owner's estate in a home the owner occupies or intends to occupy as a principal residence, exempt from attachment, execution and sale for most debts up to $125,000 automatically (G.L. c. 188, § 4) or up to $1,000,000 by a recorded declaration (§§ 3, 5), the amounts § 1 defines — and of its continuation at the owner's death for a surviving spouse and minor children who occupy the home (§ 7). Who inherits the home is decided by the will, the trust, the deed or intestacy.

Who gets the home

In Massachusetts the home passes like the decedent's other property — under the will or the trust, or by intestacy (G.L. c. 190B, § 2-102) — subject to the estate of homestead that continues for a surviving spouse and minor children who occupy the home (G.L. c. 188, § 7) and the surviving spouse's waiver of a will and claim of a share (G.L. c. 191, § 15):

• With a will or a trust that disposes of the home, it passes as the instrument says — subject to the estate of homestead that continues for a surviving spouse and minor children who occupy the home (G.L. c. 188, § 7) and, where a will is probated, the surviving spouse's right to waive its provisions and claim a share within six months after the probate (G.L. c. 191, § 15).
• Without one, the home passes by intestacy with the rest of the estate — the whole to the surviving spouse where no descendant or parent of the decedent survives, or where every surviving descendant is also the spouse's and the spouse has no other descendant; otherwise the first $200,000 plus three-fourths of the balance, or the first $100,000 plus one-half, to the spouse (G.L. c. 190B, § 2-102) and the rest to the descendants per capita at each generation or else to the parents (G.L. c. 190B, § 2-103) — and the estate of homestead continues for the surviving spouse and minor children who occupy the home (G.L. c. 188, § 7).
• A home owned with a right of survivorship passes to the survivor outside the will; a home titled to a trustee passes by the trust's terms, and a deed to the trustee of a trust for the grantor's benefit does not end the grantor's existing homestead, which continues as to the grantor's interest as a trust beneficiary (G.L. c. 188, § 10); the trustee's certificate of record for the land of a nontestamentary trust binds the trust in favor of a purchaser relying on it in good faith (G.L. c. 184, § 35).

Can the home be left by will or by trust? Yes

Massachusetts places no restriction on devising a home: the owner may leave it by will or by trust to anyone, subject to the estate of homestead that continues at the owner's death for a surviving spouse and minor children who occupy the home as their principal residence (G.L. c. 188, § 7) and the surviving spouse's right to waive the will and claim a share (G.L. c. 191, § 15).

Creditors and the home after a death

After the owner's death, the home is part of the estate — or the trust — that answers for the decedent's debts: a personal representative, or the trustee of a trust whose assets the decedent's creditors can reach, answers a creditor's action only if it is commenced within one year after the date of death (G.L. c. 190B, § 3-803), and the property of a trust that was revocable at the death answers for the settlor's creditors, the funeral expenses and the statutory allowances to a surviving spouse and children to the extent the probate estate is inadequate (G.L. c. 203E, § 505(a)(3)). The estate of homestead that continues for a surviving spouse and minor children stays exempt from sale for most debts, while the rest of the owner's interest is subject to sale for the payment of debts (G.L. c. 188, §§ 3, 7). Liens and mortgages on the home still apply. Whether particular property is reachable is fact-specific attorney territory.

Property taxes

In Massachusetts the local assessors value property for tax, and no statute in the Massachusetts statute library reassesses a home because it changed hands at a death or passed to a trust; a new owner reviews any residential exemption or abatement with the assessors, who determine the effect. The Massachusetts estate tax is a separate question: for a death on or after January 1, 2023, no tax is due where the federal taxable estate is not more than $2,000,000 (G.L. c. 65C, § 2A(g)), and the executor of an estate liable for any tax files a return within nine months after the death (G.L. c. 62C, § 17). A Massachusetts attorney can confirm what applies.

What should happen next?

Outcomes turn on facts: who survived, how the deed reads, whether minors are involved, whether a homestead was declared, and a surviving spouse's waiver and claim, filed within six months after the probate of the will (G.L. c. 191, § 15). This page is general information, not legal advice. A free role check shows you where you stand, and a Massachusetts attorney can confirm how the home passes in your situation.

General information about Massachusetts law, not legal advice.